Ramona Matos Rodriguez v. Pan American Health Organization ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 3, 2021 Decided March 29, 2022
No. 20-7114
RAMONA MATOS RODRIGUEZ, ET AL.,
APPELLEES
v.
PAN AMERICAN HEALTH ORGANIZATION,
APPELLANT
JOAQUIN MOLINA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00928)
David W. Bowker argued the cause for appellant. With
him on the briefs were Patrick J. Carome and Daniel S.
Volchok.
Jeffrey T. Green and Marisa S. West were on the brief for
amici curiae The International Bank for Reconstruction and
Development, et al. in support of appellant.
Samuel J. Dubbin argued the cause for appellees. With
him on the brief were Jonathan W. Cuneo, Charles J. Cooper,
Michael W. Kirk, Haley N. Proctor and Joseph O. Masterman.
2
Martina E. Vandenberg and Stuart A. Raphael were on the
brief for amicus curiae Human Trafficking Legal Center in
support of appellees. Elbert Lin entered an appearance.
Agnieszka M. Fryszman was on the brief for amici curiae
Senator Robert Menendez, et al. in support of appellees.
Lewis Yelin, Attorney, U.S. Department of Justice, argued
the cause for amicus curiae The United States in support of
neither party. With him on the brief were Brian M. Boynton,
Acting Assistant Attorney General, and Sharon Swingle,
Attorney.
Before: HENDERSON, TATEL and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: A group of
Cuban physicians (physicians) sued the Pan American Health
Organization (PAHO) for its role in facilitating Brazil’s Mais
Médicos (translated, “More Doctors”) program, under which
Brazil hired foreign physicians to augment its medical services
provided to impoverished Brazilians. Cuba supplied physicians
to the program, allegedly without their consent and in violation
of human trafficking laws. The physicians sued PAHO for,
inter alia, acting as a financial intermediary between Brazil and
Cuba. PAHO moved to dismiss the suit, asserting immunity
under both the International Organizations Immunities Act
(IOIA), 22 U.S.C. § 288, and the World Health Organization
(WHO) Constitution, Constitution Adopted by the United
States of America and Other Governments Respecting a World
Health Organization, June 21, 1948, 62 Stat. 2679, T.I.A.S.
No. 1808. The district court denied dismissal of the claim that
3
PAHO acted as a financial intermediary and PAHO appeals
therefrom. As detailed infra, we affirm.
I. BACKGROUND
On review of a dismissal denial, “we must accept as true
all material allegations of the complaint, drawing all reasonable
inferences from those allegations in plaintiffs’ favor, and
presuming that general allegations embrace those specific facts
that are necessary to support the claim.” LaRoque v. Holder,
650 F.3d 777, 785 (D.C. Cir. 2011) (cleaned up). We recite the
facts accordingly.
In 2012, Brazilian and Cuban officials discussed Cuba’s
“export[ing]” medical services to Brazil. Rodriguez v. Pan Am.
Health Org., 502 F. Supp. 3d 200, 208 (D.D.C. 2020).
According to the United States Department of State, Cuba
relies on “medical missions” as a significant source of income
and recruits physicians under the threat of “harsh social,
economic, political[,] personal, reputational, and legal
repercussions.” Id. Cuba proposed sending six thousand
internal medicine specialists to Brazil. Id. Brazilian officials
did not want to enter into an “intergovernmental agreement,”
which required approval of the Brazilian Congress and thus
could “generate controversy.” Id. To avoid an
intergovernmental agreement, Brazilian officials proposed
using PAHO as an intermediary. Id. Accordingly, PAHO
entered into an agreement with Brazil and Cuba, the “Technical
Cooperation Agreement Between the Ministry of Public Health
of the Republic of Cuba and the Pan American Health
Organization/World Health Organization for Expanded Access
by the Brazilian Population to Primary Health Care”
(Agreement).
PAHO’s participation in the Mais Médicos program is
somewhat ambiguous, as the complaint alleges two alternative
4
roles that PAHO played. First, the complaint alleges that
PAHO directly participated in human trafficking. PAHO
“knowingly provided and obtained the labor or services of
Plaintiffs by threats of force, physical restraint, threats of
physical restraint, serious harm, threats of serious harm, abuse
of laws and legal process, threats of abuse of laws and legal
process, and by participating in a scheme, plan, or pattern
intended to cause Plaintiffs and Class members to believe that
if they did not comply with the restrictions and work under the
conditions PAHO instituted and enforced, they would suffer
serious harm or physical restraint.” App. 123. By its alleged
conduct, the complaint continues, PAHO violated the
Trafficking Victims Protection Act (TVPA), 18 U.S.C.
§ 1589(a) (prohibiting “provid[ing] or obtain[ing] the labor or
services of a person” by force or threat). The complaint also
alleges that “PAHO . . . knowingly participated in the
recruitment, harboring, and transportation of, and provided and
obtained Plaintiffs’ labor and services,” in violation of § 1590
(prohibiting “transport[ing] . . . any person for labor or services
in violation of this chapter”). App. 124.
Alternatively, the complaint alleges that PAHO acted as a
financial intermediary between Brazil and Cuba, to wit:
“PAHO . . . entered into a bilateral agreement with the Cuban
government to guarantee it would transfer resources from third
parties as a way to compensate Cuba for the utilization of its
medical professionals, i.e. to ‘triangulate’ health care
cooperation which is ‘compensated,’ through the ‘movement
of resources.’” App. 88–89. According to the physicians,
PAHO’s role included moving money, for a fee, between the
countries. App. 64, 66, 70, 72. Brazil made payments to
PAHO’s Citibank account in Washington, D.C and PAHO then
forwarded 85% to Cuba, 10% to the physicians and retained
5% for its services. App. 71–72.
5
The complaint acknowledges that under the Agreement,
PAHO is to provide technical medical expertise necessary to
facilitate the Mais Médicos program. “In June of 2012, PAHO
entered into an agreement with the Government of Cuba that
call[ed] for PAHO [t]o facilitate international cooperation . . .
and the triangulation in health care cooperation and the moving
of resources.” App. 72 (internal quotation marks omitted)
(second alteration in original). Under the Agreement, then,
PAHO was to serve as a “broker—for a fee—of medical
services” and “triangulat[e] health care services between Cuba
and [Brazil] for compensation” App. 66, 72–73 (internal
quotation marks omitted). According to the complaint,
however, PAHO’s outward role to “facilitate” or “triangulate”
medical services was merely a “pretext for being a conduit of
money.” App. 88.
Four Cuban Mais Médicos physicians escaped to the
United States and filed a class-action suit against PAHO in the
U.S. District Court for the Southern District of Florida.
Rodriguez, 502 F. Supp. 3d at 209. The complaint contains two
civil counts: first, PAHO participated in human trafficking and
violated the TVPA, 18 U.S.C. §§ 1589, 1590; and, second,
PAHO conspired to provide involuntary labor and thus violated
the Racketeering Influenced and Corrupt Organizations
(RICO) Act, 18 U.S.C. § 1962. PAHO successfully moved to
transfer the case to the U.S. District Court of the District of
Columbia as the correct venue under the IOIA. Rodriguez, 502
F. Supp. 3d at 209; see 28 U.S.C. § 1391(f), (f)(4) (“civil action
against a foreign state . . . may be brought . . . in the United
States District Court for the District of Columbia”). PAHO
moved to dismiss on immunity, abstention and improper
service grounds. 502 F. Supp. 3d at 211–36.
The district court determined that “Count I”—alleging that
PAHO violated the TVPA—itself included three separate
6
claims. Id. at 209–10. First, PAHO obtained and provided
human labor through intimidation, violating 18 U.S.C.
§ 1589(a) (prohibiting “provid[ing] or obtain[ing] the labor or
services of a person” by force or threat). Rodriguez, 502 F.
Supp. 3d at 210. Second, PAHO benefitted financially from
human trafficking, violating 18 U.S.C. § 1589(b) (prohibiting
“knowingly benefit[ting], financially or by receiving anything
of value, from participation in a venture which has engaged in
the providing or obtaining of labor or services by” force or
threat). Rodriguez, 502 F. Supp. 3d at 210. Third, PAHO
“trafficked” Cuban physicians, violating 18 U.S.C. § 1590(prohibiting “transport[ing] . . . any person for labor or services
in violation of this chapter”). Rodriguez, 502 F. Supp. 3d at
210.
The district court upheld PAHO’s IOIA immunity as to the
first and third TVPA claims as well as the RICO claim, id. at
211–23, and held those claims in abeyance while it determined
whether to allow jurisdictional discovery, id. at 236–37.
Accordingly, those claims are not yet before us.
On the second TVPA claim, the district court rejected
PAHO’s IOIA immunity. Because the IOIA grants designated
international organizations the same immunity as foreign
sovereigns, 22 U.S.C. § 288a(b), the Foreign Sovereign
Immunities Act (FSIA), 28 U.S.C. § 1602, governs the
immunity of international organizations also. Jam v. Int’l Fin.
Corp., 139 S. Ct. 759, 772 (2019). Under the FSIA, an entity
loses its immunity if its challenged “action is based upon a
commercial activity carried on in the United States.” 28 U.S.C.
§ 1605(a)(2). The district court concluded that the commercial
activity exception applies because “it is . . . a normal
commercial function to act as a financial intermediary
transferring funds, for a fee, from one entity to another.”
Rodriguez, 502 F. Supp. 3d at 215. The district court rejected
7
PAHO’s argument that the action was “based upon” forced
labor abroad1 because “Plaintiffs’ 1589(b) claim turns on
separate and separately wrongful conduct, distinct from any
acts that could form the basis of a claim against Cuba or Brazil,
by a defendant other than Cuba or Brazil—to wit, PAHO’s
procurement of a financial benefit from knowing participation
in the allegedly exploitative Mais M[é]dicos program.” Id. at
216. The district court also rejected PAHO’s IOIA immunity
regarding the RICO claim to the extent that it rests on the
conduct underlying the 1589(b) claim. Id. at 223.
The district court also concluded that the WHO
Constitution did not render PAHO immune from the second
TVPA claim. Id. at 227–28. PAHO claimed immunity under a
provision that grants the WHO, PAHO’s parent organization,
“privileges and immunities as may be necessary” to carry out
WHO functions. Id. at 227; WHO CONST. art. 67(a). The
district court ruled that the provision is not self-executing
because Article 68 of the WHO Constitution provides that the
“privileges and immunities shall be defined in a separate
agreement.” Rodriguez, 502 F. Supp. 3d at 228. Because the
United States has not entered into a qualifying “separate
1
Under the commercial activity exception, the challenged
action must be “based upon” commercial activity in the United
States. 28 U.S.C. § 1605(a)(2). Under Supreme Court precedent
interpreting the “activity” an action is “based upon,” we look to the
“gravamen” thereof. OBB Personenverkehr AG v. Sachs, 577 U.S.
27, 35 (2015). If the gravamen of PAHO’s claim were the forced
labor abroad, the commercial activity exception would not apply
because the action would not be “based upon” activity “in the United
States.”
8
agreement,” id., PAHO is without WHO Constitution
immunity from suit.2 PAHO timely appealed.
Pursuant to 28 U.S.C. § 1291 and the collateral-order
doctrine, see de Csepel v. Republic of Hungary, 859 F.3d 1094,
1109 (D.C. Cir. 2017) (denial of motion to dismiss on
sovereign immunity ground is immediately appealable final
decision), we have jurisdiction of the second TVPA claim, that
is, that PAHO financially benefitted from its participation in a
venture that provided or obtained forced labor in violation of
§ 1589(b).
II. ANALYSIS
PAHO asserts its immunity under both the IOIA and the
WHO Constitution. Our review is de novo. Zuza v. Off. of the
High Representative, 857 F.3d 935, 938 (D.C. Cir. 2017).
“Where, as here, the defendant contests only the legal
sufficiency of [the] jurisdictional claims, the standard is similar
to that of Rule 12(b)(6), under which dismissal is warranted if
no plausible inferences can be drawn from the facts alleged
that, if proven, would provide grounds for relief.” Valambhia
v. United Republic of Tanzania, 964 F.3d 1135, 1139 (D.C. Cir.
2020) (internal quotation marks omitted). Because the IOIA
“grants international organizations the ‘same immunity’ from
suit ‘as is enjoyed by foreign governments’ . . . the Foreign
Sovereign Immunities Act governs the immunity of
international organizations.” Jam, 139 S. Ct. at 772. Under the
FSIA, a foreign sovereign “bears the burden of proving that the
plaintiff[s’] allegations do not bring [their] case within a
2
The district court also rejected other claims not raised on
appeal: an immunity claim under the United Nations Charter,
Rodriguez v. Pan Am. Health Org., 502 F. Supp. 3d 200, 227 (D.D.C.
2020), an abstention argument based on international comity, id. at
229, and an improper service argument, id. at 231.
9
statutory exception to immunity.” Phoenix Consulting Inc. v.
Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (citation
omitted). Accordingly, PAHO bears the burden of establishing
that no statutory exception to immunity applies. The WHO
Constitution is an international treaty and thus its
interpretation—including whether it is self-executing—is an
issue of law that we also review de novo. McKesson Corp. v.
Islamic Republic of Iran, 539 F.3d 485, 488 (D.C. Cir. 2008).
A. IOIA Immunity
The IOIA grants an international organization “the same
immunity from suit . . . as is enjoyed by foreign governments.”
22 U.S.C. § 288a(b). The IOIA provisions link the immunity of
international organizations and foreign governments. Jam, 139
S. Ct. at 768. In 1960, President Eisenhower designated PAHO
an international organization for IOIA purposes. Tuck v.
PAHO, 668 F.2d 547, 550 n.5 (D.C. Cir. 1981).
The IOIA, through the FSIA provisions, grants PAHO
immunity from suit brought in American courts. 28 U.S.C.
§ 1604. Under the FSIA’s commercial activity exception,
however, PAHO loses its immunity if “the action is based upon
a commercial activity carried on in the United States by the
[international organization].” Id. § 1605(a)(2). The Supreme
Court has said that courts should look to “the gravamen” of the
action when determining whether an action is “based upon” a
commercial activity in the United States. OBB
Personenverkehr AG v. Sachs, 577 U.S. 27, 35 (2015). “The
gravamen” simply means “the crux” of the action. Fry v.
Napoleon Cmty. Schs., 137 S. Ct. 743, 755 (2017).
Unsurprisingly, the parties describe neither the gravamen nor
its application under the commercial activity exception in the
same way. Their dispute includes whether to identify the
10
gravamen on a claim-by-claim basis and, further, whether the
gravamen took place in the United States.
1. Whether to determine the gravamen on a claim-by-claim
basis
PAHO contends that we should look to the entire
complaint in determining the gravamen of the action. It notes
that the commercial activity exception applies if “the action is
based upon a commercial activity,” 28 U.S.C. § 1605(a)(2)
(emphasis added), and argues that “the action” refers to the
entire lawsuit. If PAHO is correct, we must consider the entire
complaint to determine the “gravamen.” See Sachs, 577 U.S. at
35 (court looks to “gravamen” in considering whether “an
action is based upon a commercial activity carried on in the
United States” (emphasis added)). In Sachs, the Supreme Court
interpreted its earlier FSIA holding in Saudi Arabia v. Nelson,
507 U.S. 349 (1993). It observed that Nelson “did not
undertake . . . an exhaustive claim-by-claim, element-by-
element analysis of the Nelsons’ 16 causes of action” in
analyzing the “gravamen.” Sachs, 577 U.S. at 34. “Rather than
individually analyzing each of the Nelsons’ causes of action,
[the Court] zeroed in on the core of their suit: the Saudi
sovereign acts that actually injured them.” Id. at 35. We read
Sachs—and 28 U.S.C. § 1605(a)(2)—differently from PAHO.
First, the FSIA text does not require courts to look to the
entire lawsuit to determine the gravamen thereof. PAHO relies
significantly on the assumption that “action” in 28 U.S.C.
§ 1605(a)(2) refers to the entire suit. But “action” can refer both
to “a . . . judicial proceeding,” Action, Black’s Law Dictionary
(11th ed. 2019), and serve as shorthand for a “cause of action,”
id. (referring to “cause of action” entry); see also Cause of
Action, Black’s Law Dictionary (11th ed. 2019) (“group of
operative facts giving rise to one or more bases for suing”).
11
And the Supreme Court has stated that “statutory references to
an ‘action’ have not typically been read to mean that every
claim included in the action must meet the pertinent
[jurisdictional] requirement before the ‘action’ may proceed.”
Jones v. Bock, 549 U.S. 199, 221 (2007).
Second, Sachs instructs courts to define the “gravamen”
on a claim-by-claim basis. Earlier, in Nelson, the plaintiff had
claimed that the commercial activity exception lifted Saudi
Arabia’s sovereign immunity. 507 U.S. at 355–56. In that case,
the Supreme Court read the commercial activity exception to
require a court to look to the “elements of a claim that, if
proven, would entitle a plaintiff to relief under his theory of the
case” in determining whether an action is “based upon”
commercial activity in the United States. Id. at 357. After
Nelson, the Ninth Circuit Sachs opinion adopted an “element-
by-element” approach under which the commercial activity
exception applies if any element of a claim involves a
“commercial activity . . . in the United States.” Sachs v.
Republic of Austria, 737 F.3d 584, 599 (9th Cir. 2013) (en
banc).3
3
Before Sachs, circuit courts had interpreted Nelson in various
ways. Like the Ninth Circuit, the Eighth Circuit read Nelson to say
that “only one element of a plaintiff’s claim must concern
commercial activity carried on in the United States.” BP Chems. Ltd.
v. Jiangsu Sopo Corp., 285 F.3d 677, 682 (8th Cir. 2002). It therefore
found that a wrongful disclosure case was “based upon” commercial
activity in the United States because the plaintiffs alleged that the
defendants disclosed “trade secrets to American vendors in the
United States.” Id. at 684. Indeed, rejecting the “gravamen” theory,
the Eighth Circuit held that courts should look beyond the elements
only if guarding against a “semantic ploy” like recasting an
intentional tort claim as a “facially invalid” failure-to-warn claim. Id.at 685–86.
12
In Sachs, the Supreme Court rejected that approach. Sachs,
507 U.S. at 34. Sachs had purchased a Eurail train pass in the
United States and was later injured at a government-owned
train station in Austria. Id. at 30. She sued Austria’s railway
operator, relying on the commercial activity exception because
an element of her claim—her Eurail purchase—involved
“commercial activity . . . in the United States.” Id. at 30. The
Supreme Court clarified that earlier, in Nelson, it did not
“individually analyz[e] each of the [plaintiffs’] causes of
action” because the “Saudi sovereign acts that actually injured
them . . . form[ed] the basis for the [plaintiffs’] suit.” Id. at 35
(quoting Nelson, 507 U.S. at 358) (internal quotation marks
In our circuit, we read Nelson to say that the commercial activity
must constitute an essential element of the claim. Kirkham v. Société
Air France, 429 F.3d 288, 292 (D.C. Cir. 2005) (“so long as the
alleged commercial activity establishes a fact without which the
plaintiff will lose, the commercial activity exception applies”). In
Kirkham, we explained that the plaintiff “must show she purchased a
plane ticket in order to establish a passenger-carrier relationship with
the airline” and proceed with her negligence claim against Air
France. Id. The Fourth and Fifth Circuits interpreted Nelson
similarly. See Globe Nuclear Servs. & Supply (GNSS), Ltd. v. AO
Techsnabexport, 376 F.3d 282, 287 (4th Cir. 2004) (what plaintiff
“will need to prove” constitutes what action is “based upon”); Kelly
v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 853 (5th Cir. 2000)
(inquiry is whether alleged commercial activity is “an essential
element of the claims”).
The Third Circuit read Nelson to “require the actual legal claims
being pursued to have arisen materially from the commercial activity
undertaken by the foreign state.” Fed. Ins. Co. v. Richard I. Rubin &
Co., 12 F.3d 1270, 1288 (3d Cir. 1993). It therefore held that tort
claims arising from deficient electrical and fire detection systems
were not “based upon” a Dutch-controlled entity that invested in
American property. Id. at 1289. The investments were not “directly
connected to the cause of action” or the “‘basis’ or ‘foundation’ of
the claims.” Id.13
omitted). PAHO argues that the Sachs Court, in saying that
Nelson “did not undertake . . . an exhaustive claim-by-claim,
element-by-element analysis of the Nelsons’ 16 causes of
action,” id. at 34, instructs us to look to the entire lawsuit to
determine whether an action is “based upon” commercial
activity in the U.S. But Sachs rejected the Ninth Circuit’s “one-
element” approach and instead reaffirmed its direction to look
to the “gravamen” of the suit. Indeed, Sachs itself considered
individual claims, declaring that “the gravamen of Sachs’s suit
plainly occurred abroad. All of her claims turn on the same
tragic episode in Austria.” Id. (emphasis added). The Court
explicitly rejected Sachs’s assertion that some of her claims
were based upon American activity. Id. at 35–36 (“Sachs
maintains that some of those claims are not limited to negligent
conduct or unsafe conditions in Austria, but rather involve at
least some wrongful action in the United States. . . . However
Sachs frames her suit, the incident in Innsbruck remains at its
foundation.”). The Court in fact emphasized its opinion’s
limited reach, noting it “consider[ed] here only a case in which
the gravamen of each claim is found in the same place.” Id. at
36 n.2 (emphasis added). Sachs, then, approves considering the
“gravamen” on a claim-by-claim basis.
Since Sachs, we have considered “FSIA immunity
determinations on a claim-by-claim basis.” Simon v. Republic
of Hungary, 812 F.3d 127, 141 (D.C. Cir. 2016) (citing
precedent from other circuits), vacated on other grounds by
Federal Republic of Germany v. Philipp, 141 S. Ct. 703 (2021);
see also Action All. of Senior Citizens of Greater Philadelphia
v. Sullivan, 930 F.2d 77, 83 (D.C. Cir. 1991) (vacated opinions
“continue to have precedential weight, and in the absence of
contrary authority, we do not disturb them”). In Simon, we
reviewed claims made by fourteen Holocaust survivors against
the Republic of Hungary and its state-owned railway. Id. at
132. The survivors “assert[ed] causes of action ranging from
14
the common law torts of conversion and unjust enrichment for
the plaintiffs’ property loss, to false imprisonment, torture, and
assault for their personal injuries, to international law
violations.” Id. at 134. They argued that FSIA’s expropriation
exception applied, id. at 140, which requires, inter alia, “that
the claims are ones in which ‘rights in property’ are ‘in issue,’”
id. at 141 (quoting 28 U.S.C. § 1605(a)(3)). We reviewed the
causes of action separately, noting that property rights were at
issue in the plaintiffs’ conversion claims but not in their
personal injury claims. Id. Although PAHO emphasizes that
the commercial activity exception uses “action” (and the
expropriation exception does not), we think it unlikely that this
implicit word choice differentiates commercial activity
exception analysis from that of other FSIA exceptions.
The parties also contest PAHO’s alleged delict—whether
PAHO “moved money for a fee” (i.e., acting as a financial
intermediary) or, instead, arranged medical services for a fee
(i.e., acting as an international public health organization). As
described supra, the complaint alleges that PAHO “moved
money for a fee” under the “pretext” of arranging medical
services. PAHO, of course, maintains that it in fact organized a
public health program. At this stage of the litigation, however,
we accept all well-pleaded allegations as true. Valambhia, 964
F.3d at 1137. The complaint plainly asserts that, with respect
to the funds that constituted its financial benefit in violation of
1589(b), PAHO had the role of financial “intermediary,”
transferring money among Mais Médicos participants.
2. Whether the gravamen occurred in the United States
The parties also dispute how to define the gravamen under
the claim-by-claim approach and whether the gravamen
constitutes “commercial activity carried on in the United
States.” PAHO maintains that the “gravamen” is the activity
15
that in fact injured the physicians, the alleged human
trafficking and forced labor. In Sachs, the Supreme Court
rejected Sachs’s argument that, for her failure-to-warn claim,
the gravamen occurred in the United States. 577 U.S. at 35–36.
“Under any theory of the case that Sachs presents . . . there is
nothing wrongful about the sale of the [train] pass standing
alone. Without the existence of the unsafe boarding conditions
in [Austria], there would have been nothing to warn Sachs
about when she bought the [train] pass. However Sachs frames
her suit, the incident in [Austria] remains at its foundation.” Id.
Moreover, in Jam v. International Finance Corporation, 3
F.4th 405 (D.C. Cir. 2021), we recently applied a similar
rationale. The plaintiff alleged that the International Finance
Corporation (IFC) negligently lent money to an Indian power-
generation project that allegedly caused significant
environmental damage. Id. at 407. Relying in part on the
Supreme Court’s earlier decision in the case, see Jam, 139 S.
Ct. at 779 (“[I]f the ‘gravamen’ of a lawsuit is tortious activity
abroad, the suit is not ‘based upon’ commercial activity within
the meaning of the FSIA’s commercial activity exception.”),
we held that, notwithstanding the IFC loan transaction took
place in the United States, the “gravamen” occurred in India
because all the allegedly wrongful conduct occurred there.
Jam, 3 F. 4th at 409.
PAHO asserts that “moving money for a fee” likewise
becomes “wrongful” only due to activity that occurred
elsewhere—in this instance, alleged human trafficking and
forced labor in Cuba and/or Brazil. Absent the alleged
trafficking and forced labor, PAHO would have merely acted
as a typical financial intermediary. As in Sachs and in Jam,
PAHO argues that we should look to what “actually injured”
the physicians in identifying the “gravamen.” See Sachs, 577
U.S. at 35–36. If PAHO is right, the “gravamen” occurred
abroad and the commercial activity exception would not apply.
16
We think that Sachs does not require defining the
“gravamen” by looking to the acts that “actually injured” the
physicians. In defining the “gravamen” according to the
activity that injured the plaintiffs, the Sachs Court clarified that
“[d]omestic conduct with respect to different types of
commercial activity may play a more significant role in other
suits.” 577 U.S. at 36 n.2; see also id. (“Justice Holmes wrote
that the ‘essentials’ of a personal injury narrative will be found
at the ‘point of contact’—‘the place where the boy got his
fingers pinched.’ At least in this case, that insight holds true.”
(citation omitted) (emphasis added)). Nelson, Sachs and Jam
all considered commercial activity connected with tortious
activity that occurred abroad. See Jam, 139 S. Ct. at 779 (“[I]f
the ‘gravamen’ of a lawsuit is tortious activity abroad, the suit
is not ‘based upon’ commercial activity within the meaning of
the FSIA’s commercial activity exception.” (emphasis added)).
The Court expressed concern that artful pleading would allow
litigants to “recast virtually any claim of intentional tort” as a
failure to warn and thus create an exception to sovereign
immunity. Sachs, 577 U.S. at 36 (quoting Nelson, 507 U.S. at
363).4
4
Indeed, in Nelson and Sachs, the Court explained that it looked
to the “gravamen” as plaintiffs could otherwise recast nearly any
tortious activity that occurred abroad as a tort that occurred in the
United States. See Nelson, 507 U.S. at 363 (“[A] plaintiff could
recast virtually any claim of intentional tort committed by sovereign
act as a claim of failure to warn, simply by charging the defendant
with an obligation to announce its own tortious propensity before
indulging it. To give jurisdictional significance to this feint of
language would effectively thwart the [FSIA’s] manifest purpose to
codify the restrictive theory of foreign sovereign immunity.”); id. at
358 (“Those torts, and not the arguably commercial activities that
preceded their commission, form the basis for the Nelsons’ suit.”);
Sachs, 577 U.S. at 36 (iterating Nelson’s concern about artful
17
Here, however, the alleged financial activity itself gives
rise to a cause of action. See 18 U.S.C. § 1589(b) (prohibition
on financially benefitting from participation in human
trafficking). At least with regard to alleged illegal financial
activity, we consider the “gravamen” of that alleged wrongful
conduct rather than any harm that may result elsewhere. The
“gravamen” of a suit consists of “those elements of a claim that,
if proven, would entitle a plaintiff to relief under his theory of
the case,” Nelson, 507 U.S. at 357, or, phrased differently, “the
core” of a claim, see Sachs, 577 U.S. at 35. If the conduct is
itself wrongful—as opposed to wrongful based only on other
conduct—it constitutes the “core” of the claim. The physicians
allege that PAHO committed a financial crime in the U.S., see
18 U.S.C. § 1589(b), and press the corresponding civil claim,
see 18 U.S.C. § 1595(a) (“individual who is a victim of a
violation of this chapter may bring a civil action against the
perpetrator . . . and may recover damages”). The “financial
benefit” that violates § 1589(b) is itself “wrongful conduct”
and occurred in the United States, to wit: PAHO received,
forwarded and retained the Mais Médicos money through its
Washington, D.C. bank account. Apart from the wrongful
conduct PAHO allegedly participated in abroad, the physicians
also allege wrongful conduct that occurred entirely within the
U.S.5
pleading of tort claims); id. (gravamen occurs abroad if plaintiff
suffers “personal injury” abroad and “seeks relief under claims for
negligence, strict liability for failure to warn, or breach of implied
warranty”); see also Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743,
755 (2017) (concern about artful pleading motivated holding in
Sachs).
5
Because we define the “gravamen” as it relates to the injury-
causing conduct, and not to the resulting injury, we need not address
who suffered from the § 1589(b) violation. Even if we did, however,
we would reach the same conclusion. Section 1589(a) criminalizes
18
Accordingly, we believe that the physicians have
sufficiently alleged that PAHO’s conduct of “moving money
for a fee” constituted “commercial activity carried on in the
United States.” We emphasize, however, that we hold only that
the physicians have made sufficient allegations to survive
dismissal; the district court retains the authority to reassess its
jurisdiction as the litigation progresses. Arbaugh v. Y&H Corp.,
546 U.S. 500, 506 (2006) (“subject-matter jurisdiction . . . may
be raised by a party, or by a court on its own initiative, at any
stage in the litigation”); Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992) (burden of establishing jurisdiction
varies “with the manner and degree of evidence required at the
successive stages of the litigation”).
B. WHO Constitution Immunity
PAHO also claims immunity under the WHO
Constitution. The WHO Constitution provides that it “shall
enjoy in the territory of each Member such privileges and
immunities as may be necessary for the fulfillment of its
objective and for the exercise of its functions.” WHO CONST.
art. 67(a). “Such . . . privileges and immunities shall be defined
in a separate agreement to be prepared by the Organization in
consultation with the Secretary-General of the United Nations
the “provid[ing] or obtain[ing of] labor” through force. Under a
§ 1589(a) claim, the suffered injury is plainly involuntary servitude.
By contrast, § 1589(b)—the TVPA subsection claim sub judice—
criminalizes knowing benefit, financial or otherwise, from
participation in a venture that has provided or obtained forced labor.
Section 1589(b), like § 1589(a), protects against involuntary
servitude. Cf. Rodriguez, 502 F. Supp. 3d at 217 (PAHO injured
physicians because its financial activity played direct role in harming
them). Section 1589(b) also protects commercial entities that decline
to benefit from forced labor and may be harmed by competition from
products or services garnering implicit subsidies from forced labor.
19
and concluded between the Members.” Id. art. 68. We assume
arguendo that PAHO, the WHO’s Regional Office for the
Americas, Agreement Between the World Health Organization
and the Pan American Sanitary Organization, May 24, 1949,
also enjoys the immunity granted to the WHO under the WHO
Constitution. We nonetheless reject PAHO’s immunity claim
because the relevant provision of the WHO Constitution is not
self-executing.6
Although the Supremacy Clause of the United States
Constitution guarantees that “all Treaties . . . shall be the
supreme Law of the Land,” U.S. CONST. art. VI, cl. 2, the
Supreme Court has long recognized the “distinction between
treaties that automatically have effect as domestic law, and
those that—while they constitute international law
commitments—do not by themselves function as binding
federal law.” Medellin v. Texas, 552 U.S. 491, 504 (2008). The
court must determine whether a treaty has domestic legal
effect—that is, whether the treaty is “self-executing.” “When
[a treaty’s] stipulations are not self-executing, they can only be
enforced pursuant to legislation to carry them into effect.”
Whitney v. Robertson, 124 U.S. 190, 194 (1888).
To determine whether a treaty is self-executing, the court
must “decide whether a treaty’s terms reflect a determination
by the President who negotiated it and the Senate that
confirmed it that the treaty has domestic effect.” Medellin, 552
U.S. at 521. “The interpretation of a treaty [is] like the
6
The physicians make other arguments challenging PAHO’s
asserted immunity under the WHO Constitution. They argue that the
United States did not adopt the WHO Constitution through proper
constitutional procedures and that WHO immunity does not extend
to PAHO (WHO’s regional affiliate). Because we conclude that
Article 67(a) of the WHO Constitution is not self-executing, we do
not reach these arguments.
20
interpretation of a statute.” Id. at 506. We first look to the
treaty’s text. Id. Because a treaty is “an agreement among
sovereign powers, we have traditionally [also] considered as
aids to its interpretation the negotiating and drafting
history (travaux préparatoires) and the postratification
understanding of the contracting parties.” Zicherman v. Korean
Air Lines Co., 516 U.S. 217, 226 (1996); see also Choctaw
Nation of Indians v. United States, 318 U.S. 423, 431 (1943)
(courts “look beyond the written words” more often when
interpreting treaty than when interpreting contract).
Nonetheless, “[t]he clear import of treaty language controls
unless application of the words of the treaty according to their
obvious meaning effects a result inconsistent with the intent or
expectations of its signatories.” United States v. Stuart, 489
U.S. 353, 365–66 (1989) (quoting Sumitomo Shoji America,
Inc. v. Avagliano, 457 U.S. 176, 180 (1982)) (internal
quotation marks omitted).
As made plain by the language of Articles 67(a) and 68 of
the WHO Constitution, Article 67(a) is not self-executing.
First, Article 67(a) does not provide an enforceable rule-of-
decision. If a treaty provision does not contain a judicially
manageable rule of decision, the provision is ordinarily not
self-executing. See Diggs v. Richardson, 555 F.2d 848, 851
(D.C. Cir. 1976) (treaty is not self-executing if it does “not
provide specific standards”); cf. Edye v. Robertson, 112 U.S.
580, 598–99 (1884) (“A treaty, then, is a law of the land as an
act of congress is, whenever its provisions prescribe a rule by
which the rights of the private citizen or subject may be
determined.”). Article 67(a) provides that the WHO enjoys
“privileges and immunities . . . necessary for the fulfillment of
[the WHO’s] objective.” That standard is far too general to
establish a rule of decision.
21
Moreover, Article 68 stipulates that the political branches
will enforce Article 67(a). See WHO CONST. art. 68 (Article
67(a)’s “privileges and immunities shall be defined in a
separate agreement to be prepared by the Organization in
consultation with the Secretary-General of the United Nations
and concluded between the Members”). If treaty language
requires a political branch to take future action, courts almost
always conclude that the treaty language committed discretion
to the political branches and is therefore not self-executing. See
Diggs, 555 F.2d at 851 (treaty not self-executing if it “call[s]
upon governments to take certain action”); Republic of
Marshall Islands v. United States, 865 F.3d 1187, 1194 (9th
Cir. 2017) (treaty provision that “anticipates future action . . .
to implement or honor the treaty obligation” is not self-
executing); cf. Medellin, 552 U.S. at 509 (“The U.N. Charter’s
provision of an express diplomatic—that is, nonjudicial—
remedy is itself evidence that [International Court of Justice]
judgments were not meant to be enforceable in domestic
courts.”). Article 68 states that Article 67(a)’s “privileges and
immunities shall be defined in a separate agreement to be
prepared by the Organization in consultation with the
Secretary-General of the United Nations and concluded
between the Members.” The WHO Constitution thereby
requires members to conclude an agreement defining the
privileges and immunities. By adopting the WHO Constitution,
the President and the Congress thereby agreed that another
agreement is required to define the WHO’s privileges and
immunities, relieving the courts of the task of defining them.
In response, PAHO relies on Article 67(a)’s mandatory
language. See WHO CONST. art. 67(a) (WHO “shall enjoy . . .
such privileges and immunities as may be necessary for the
fulfillment of its objective and for the exercise of its functions”)
(emphasis added). Indeed, if a treaty provision does not include
mandatory language like “shall” or “must,” that omission
22
usually indicates that the provision is not self-executing.
Medellin, 552 U.S. at 508. But “even mandatory language may
not be conclusive evidence that a provision is self-executing if
the context and treaty objectives indicate otherwise.” Doe v.
Holder, 763 F.3d 251, 255 (2d Cir. 2014). In other words, in
determining whether a treaty provision is self-executing,
mandatory language is required but not necessarily sufficient.
PAHO also asserts that the U.S. has by implication bound
itself to the separate treaty that defines the WHO’s “privileges
and immunities.” In 1947, as provided by Article 68, the United
Nations General Assembly approved the Convention on the
Privileges and Immunities of the Specialized Agencies
(CPISA). See Convention on the Privileges and Immunities of
the Specialized Agencies, 33 U.N.T.S. 261 (1947) (art. I,
§ 1(ii)(g) & art. III, § 4). The CPISA grants the WHO
immunity from every form of legal process. Id. at 264, 266. The
United States joined the WHO in 1948, see Constitution
Adopted by the United States of America and Other
Governments Respecting a World Health Organization, June
21, 1948, 62 Stat. 2679, T.I.A.S. No. 1808, one year after the
U.N. General Assembly adopted the CPISA. But the United
States has never ratified the CPISA.
PAHO contends that the United States “by implication”
ratified the CPISA, at least insofar as it defines the “privileges
and immunities” of Article 67(a) of the WHO Constitution,
when it ratified the WHO Constitution. But the United States
did not ratify the CPISA by virtue of the WHO Constitution’s
provision requiring a subsequent agreement defining
“privileges and immunities.” Indeed, when the U.S. eventually
entered into a corresponding treaty that granted immunity to
the U.N.—the Convention on the Privileges and Immunities of
the United Nations (CPIUN)—the Senate Report indicates that
the political branches had not ratified treaties like the CPISA
23
because they thought that the IOIA itself provided sufficient
immunity to international organizations. S. Exec. Rep. No. 91-
17, p. 1, 8, 11, 14 (1970). Moreover, the political branches
thought it necessary to ratify the CPIUN—which expanded
IOIA immunity in “minor ways,” id. at 1—even though
Articles 105(1) and 105(3) of the U.N. Charter effectively
mirror the WHO Constitution’s Article 67(a) and Article 68,
respectively.7
Finally, we note that the United States has submitted an
amicus brief affirming that, in its view, WHO Constitution
Article 67(a) is not self-executing. “Respect is ordinarily due
the reasonable views of the Executive Branch concerning the
meaning of an international treaty.” El Al Israel Airlines, Ltd.
v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999). The Executive
Branch’s position reinforces our decision.
For the foregoing reasons, we affirm the district court’s
judgment denying PAHO’s motion to dismiss the 18 U.S.C.
§ 1589(b) claim and remand for further proceedings consistent
with this opinion.
7
Compare WHO CONST. art. 67(a) (WHO “shall enjoy in the
territory of each Member such privileges and immunities as may be
necessary for the fulfillment of its objective and for the exercise of
its functions”) and WHO CONST. art. 68 (“Such . . . privileges and
immunities shall be defined in a separate agreement to be prepared
by the Organization in consultation with the Secretary-General of the
United Nations and concluded between the Members.”) with U.N.
CHARTER art. 105(1) (“The Organization shall enjoy in the territory
of each of its Members such privileges and immunities as are
necessary for the fulfillment of its purposes.”) and U.N. CHARTER
art. 105(3) (“The General Assembly may make recommendations
with a view to determining the details of the application of
paragraphs 1 . . . of this Article or may propose conventions to the
Members of the United Nations for this purpose.”).
24
So ordered.